What to know about Emerging PFAS Legislation in Michigan

Due to increasing concern over PFAS contamination, both federal and state governments are actively taking steps to address the problem with recent regulatory measures. Michigan, in particular, has been at the forefront of this movement with several PFAS-related bills introduced in the state within the last few years.

We sat down with Michael DiGiannantonio, one of our experienced lawyers and a Michigan native, to discuss these developments and address updates on PFAS legislation in Michigan

Navigating PFAS: Insights on Legislation and Detection

Valentina Bieser: First, can you briefly define PFAS and explain why it is a concern for water suppliers in Michigan?

DiGiannantonio: PFAS, or per- and polyfluoroalkyl substances, are a group of man-made chemicals that have been used in a variety of industrial and consumer products for decades. They are very difficult to break down in the environment, and as a result, this toxic chemical can enter the water supply and accumulate in the blood of people and animals. While Michigan leads the way in understanding and addressing PFAS, the Michigan PFAS Action Response Team (MPART) has identified 194 sites of contamination around the state in the last four years. These sites include car washes, fire stations, oil refineries, plastics and paper mills, military bases, landfills, automotive molding factories, metal plating facilities, and drinking water. They are also found in animals we eat, like fish and deer.

Bieser: What are common pollution sources for these chemicals?

DiGiannantonio: A common pollutant is the chemical-based aqueous film-forming foam (AFFF) used by firefighters on military bases, airports, and fire departments. Industrial chemicals used by manufacturers like AFFF are then either emptied into lakes and rivers via wastewater or through waste disposal sites.

Bieser: What has been the most significant legislation to address PFAS contamination in Michigan?

DiGiannantonio: In recent years, several bills have been introduced in the Michigan legislature to address PFAS contamination, including measures to set limits for PFAS in drinking water and to require testing and reporting of PFAS levels in water sources. One of the most significant pieces of legislation was Michigan’s stringent PFAS drinking water standards, which took effect in August of 2020. These standards have established the state of Michigan as one of the most proactive in the nation in keeping PFAS out of public water supply. Michigan also requires municipal water suppliers to test for and report on the presence of state-regulated PFAS chemicals [listed in the chart below] on a quarterly basis. If the water quality receives a failing grade for four consecutive quarters, it becomes a water quality violation.

Bieser: What is the latest update on PFAS legislation in Michigan?

DiGiannantonio: Michigan has prohibited the use of PFAS-containing firefighting foam for training purposes, requiring any discharge of PFAS-containing foam to be reported to the state. They have also established a take-back program for PFAS foam, where the department will accept the foam concentrate free of charge and properly dispose of it.

Bieser: Can you talk about the recent actions taken by the Environmental Protection Agency and their implications?

DiGiannantonio: Well, in June 2022, the EPA updated four health advisories and lowered the levels considered safe for two of the most common PFAS chemicals: perfluorooctanoic avoid (PFOA) and perfluorooctane sulfonic acid (PFOS) to 0.004 parts per trillion (ppt) and 0.02 ppt, respectively. On August 26, 2022, the EPA also issued a proposal to designate two of the most widely used PFAS as hazardous substances under the Comprehensive Environmental 66 Act (CERCLA), also known as Superfund. The intention here is to increase transparency and hold polluters accountable for the cleanup. The EPA also announced that they will finalize national MCLs for PFOA and PFOS by the end of 2023. This could mean more stringent guidelines for cleanup and other significant changes for water suppliers.

Bieser: How should water suppliers react to this information?  

DiGiannantonio: This may present more legal and operational checkpoints for water industry leaders and system operators, as well as increased costs for running tests, installing treatment facilities, and in some cases, replacing the water source altogether. For most municipalities, these costs can place a huge burden on their resources.  

In anticipation of the EPA’s proposals, many water suppliers across the country have been working with their federal representatives to carve out protections from liability from PFAS contamination. Especially if PFAS has already been detected in the water, we encourage suppliers to consult with legal counsel and explore the options for recourse. Understanding how you have been impacted, the type and level of contamination, and available treatment options will result in a faster and more cost-effective resolution. For example, if contamination is related to AFFF, water managers and suppliers can file a lawsuit that could be assigned to a current nationwide multidistrict litigation (MDL), such as the one in South Carolina with over 2,500 plaintiffs scheduled for June 5, 2023. Joining this MDL is likely one of the faster routes to seeking damages for water system pollution caused by AFFF.

Bieser: How does one decide whether or not to pursue legal action?

DiGiannantonio: The first option would be to seek legal advice from a lawyer specializing in environmental hazards. When choosing a law firm, it is important to select one with water litigation experience. Firms with specialized experience are more likely to give better results, require less work on the client's part, and have a deeper understanding of the legal landscape. For example, SL Environmental Law Group has over 20 years of experience solely dedicated to water contamination litigation.  

Of course, there are costs associated with filing a lawsuit. Most law firms charge by the hour, which can become quite expensive. SL provides services on a contingency fee basis, which means a fee is only due if and when the case achieves a favorable result. Typically, law firms that operate on a contingency basis also front the costs of collecting data and assembling testimony, saving plaintiffs substantial funds.  

In my opinion, it is always smart to consult with legal counsel immediately when contemplating a lawsuit to ensure action is not time-barred.

Bieser: Speaking of time, is there a statute of limitations on filing a lawsuit?

DiGiannantonio: Yes. In Michigan, an action for products liability must be brought within three years of accrual or when the complained-of wrongdoing occurred. Michigan courts also recognise that accrual in some products liability scenarios occurs when a plaintiff discovered (or should have discovered) an injury caused by a defendant’s breach.  

Bieser: Any final thoughts on PFAS legislation in the state of Michigan?

DiGiannantonio: It is important to keep in mind that PFAS is a complex issue, and that the situation is always developing. Water suppliers should work closely with local regulators, a legal team, and other experts to stay informed about the latest updates and receive guidance on dealing with PFAS contamination.

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In light of these developments, it is crucial for water suppliers to be proactive and prepared. Legal and operational challenges, as well as financial burdens, may arise as a result of the evolving regulatory landscape. Seeking legal counsel and exploring available options for recourse is highly recommended, especially if PFAS has already been detected in the water system.

At SL Environmental Law, we specialize in representing states, municipalities, and water systems in environmental contamination cases. With a successful track record of representing over 150 clients and recovering over $1 billion in settlements and judgments, we are well-versed in navigating the complex legal landscape of water contamination.

Take action today by scheduling a free consultation with SL Environmental Law Group to discuss your specific needs and challenges regarding PFAS contamination in your water system or the potential for future detection.